Use of Prior DWI Convictions to Enhance a the Penalty for a DWI Offense

Issue:

Can a defendant’s prior DWI convictions which occurred greater than ten years ago be used to enhance a DWI committed in 2007 to a third-degree felony?

Short Answer:

Yes. In 2005, the Texas Legislature repealed Tex. Pen. Code Ann. § 49.09(e) which had prohibited the use of DWI convictions occurring more than ten years prior to a current DWI offense to enhance the current DWI offense to a third-degree felony. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 3, 2005 Tex. Gen. Laws 3363, 3365.

Discussion:

If a person commits two DWI offenses and subsequently commits a third, the third DWI can be enhanced to a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). But before September 1, 2005, at least one of the prior DWI convictions must have occurred within ten years of the current offense. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But as long as the person was convicted and finished probation, jail time, or parole for all of his prior DWI convictions more than ten years prior to his current conviction, the State could not use them against him. Act of April 22, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3697 (amended 2001). But the Texas Legislature repealed that prohibition in 2005. See Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2006). Because the prohibition has been repealed, prior DWI convictions, even those occurring more than ten years ago, can be used to enhance a DWI to a third-degree felony.

But there is an exception: If the DWI offense for which the defendant is currently accused occurred prior to September 1, 2005, then the State can enhance the offense with two prior DWI convictions only if one of the two convictions occurred within ten years of the current offense. Act of June 18, 2005, 79th Leg., R.S., ch. 996 § 4, 2005 Tex. Gen. Laws 3363, 3365; see generally Bowers v. State, 77 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Furthermore, if the two prior DWI convictions occurred more than ten years apart from each other, then the later cannot be used to enhance a DWI offense committed before September 1, 2007 to a third-degree felony. State v. Verhoeven, 151 S.W.3d 637, 642-43 (Tex. App.—Fort Worth 2004, pet. ref’d).

Yet this exception does not apply to a DWI committed in 2007 because it occurred after the September 1, 2005 repeal of Tex. Pen. Code Ann. § 49.09(e).

Conclusion:

Because the DWI offense occurred after September 1, 2005, any prior DWI convictions can be used to enhance it to a third-degree felony.